72 F.

3d 806
43 Fed. R. Evid. Serv. 245

UNITED STATES of America, Plaintiff-Appellee,

v.
Ferlin PLATERO, Defendant-Appellant.
No. 95-2026.

United States Court of Appeals,

Tenth Circuit.
Dec. 21, 1995.

Teresa E. Storch, Assistant Federal Public Defender, Albuquerque, New

Mexico, for defendant-appellant.
Robert J. Gorence, First Assistant U.S. Attorney, Albuquerque, New
Mexico (John J. Kelly, United States Attorney, Albuquerque, New
Mexico, with him on the brief), for plaintiff-appellee.
Before EBEL and HOLLOWAY, Circuit Judges, and BROWN, * District
Judge.
HOLLOWAY, Circuit Judge.

Defendant-Appellant Ferlin Platero appeals from an order of the district court,

on remand, upholding his conviction on three counts of aggravated sexual
assault in violation of 18 U.S.C. Sec. 2241(a). We have jurisdiction pursuant to
28 U.S.C. Sec. 1291.

2* A
3

There was evidence presented by the government showing the following:

After work on September 1, 1992, Susan Francis drove her co-worker Vernon
Laughlin to the Sports Page Lounge in Gallup, New Mexico. She then drove
home. After her husband left for a class, Francis called Laughlin at the bar.
Laughlin offered to buy dinner for Francis. After her husband returned, Francis

joined Laughlin at the bar. Laughlin and Francis had a drink at the bar and then
went to a restaurant and ate. They returned to the Sports Page Lounge around
10:30 p.m. and stayed until around 12:30 a.m. Francis and Laughlin then left
the bar and headed out of Gallup. Laughlin was driving.
5

Francis testified that she was reclined in her seat, "ready to fall asleep," when
Laughlin told her that they were being pulled over. She looked back and saw
flashing lights. They pulled onto a dirt road. Platero, a security guard employed
by Gallup Security Service, approached and said that Laughlin had been
weaving all over the road. Platero asked more questions and asked for
Laughlin's driver's license. Laughlin told Platero that he did not have a driver's
license. Laughlin testified that he thought Platero was a police officer.

Platero told Laughlin to step out of the car. At some point, according to
Laughlin, Platero threatened to arrest him for DWI. Laughlin testified that
Platero went to the driver's side and asked Francis questions. Platero asked for
Francis's driver's license, and she gave it to him. Platero then went back to his
car. When he returned he told Laughlin "I'll give you a break this time. You
better start walking. Take a hike." Laughlin said that after he walked about 10
or 15 yards, Platero came up to him and told him he was going to arrest Francis
for being uncooperative.

Francis testified that Platero took her driver's license back to his car. She said he
returned a few minutes later and told her to get out of her car and stand next to
it. Platero told Francis that he was taking her in. Francis said that when she first
got into Platero's car she thought he was just going to take her home. However,
he told her that he was taking her in for DWI. When she complained that she
hadn't been driving, Platero got angry and said: "If you're not going to
cooperate, I'm going to have to put these handcuffs on you." Platero told
Francis that he would add on more charges if she said any more. He then
handcuffed her. Laughlin testified that he saw Platero's car leave and returned
to Francis's car. He got in and fell asleep.

Platero drove the car north away from Gallup for about ten minutes and then
turned onto a dirt road. He parked and removed Francis's handcuffs. She
testified that Platero then raped her twice in the front seat of the car and forced
her to have oral sex.

Afterwards Platero drove Francis back to her car. She was still buttoning her
blouse when Platero drove up to her car. She opened the door to her car and
saw Laughlin. Laughlin said that Francis was still trying to fix her clothes and

button her blouse. According to Laughlin, Platero said he brought Francis back
because she was being uncooperative and that "she was still in the same
condition."
10

Laughlin and Francis then drove off, and Francis started crying. Laughlin asked
if Platero had raped her. She told him he had, and Laughlin drove her to the
Gallup Indian Medical Center, arriving there at around 6 or 7 in the morning.

11

Platero denied pulling Francis and Laughlin over and said that the car was
stopped when he encountered it. He admitted having sex with Francis, but
asserted it was consensual. On cross-examination Platero admitted that on the
way back to Francis's car he told her that he "hadn't done anything to her, that
she had done it to herself."

B
12

Platero was charged by an indictment with three counts of aggravated sexual

assault on the Navajo Reservation on September 2, 1992, under 18 U.S.C. Sec.
2241(a), arising out of this incident (Counts I, II and III), and other offenses not
relevant here. The theory of defense to the charges involved here was that
Francis had consented to sex with Platero and had fabricated her sexual assault
allegations against Platero in order to protect her relationship with Laughlin.

13

Platero filed a motion under Fed.R.Evid. 412(b)(1) seeking to introduce

evidence of Francis's alleged "past sexual behavior" under the rule which was
generally said to be her involvement in a "romantic relationship" with Laughlin
at the time of the alleged rape. I R. doc. 44 at 1. This was offered in order to
show that Francis had a motive to fabricate the rape allegations against Platero.
At the Rule 412 hearing, Laughlin and Francis testified that their relationship
turned from friendship to intimacy after the rape. (They were living together at
the time of trial.) Anna Mike, Laughlin's former girlfriend, testified that she
believed that Francis and Laughlin were having an affair as early as 1990. The
district court excluded the evidence regarding Francis's and Laughlin's
relationship, finding the facts distinguishable from Olden v. Kentucky, 488 U.S.
227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam), which held such
evidence admissible in similar circumstances.

14

As noted in Platero's first appeal in this case, the only difference between Olden
and the instant case is the uncertainty as to the existence of a relationship
between Laughlin and Francis at the time of the rape. United States v. Platero,
No. 93-2317, slip op. at 3, 1994 WL 645339 (10th Cir. Nov. 16, 1994) (Platero

I ). In Platero I, we remanded to the district court, stating that "[t]he application

of the Olden principle is dependant [sic] upon the existence of a relationship
between Francis and Laughlin." Id. We concluded that "the proper outcome
hangs in the balance. If there had been an existing relationship between Francis
and Laughlin at the time of the alleged crime, defendant should have been
allowed to cross-examine Francis, as required by Olden." Id. We affirmed in
part,1 and remanded in part "for a determination of the factual issue addressed
in this order and judgment." We also directed that "[f]ollowing that
determination, the district court shall proceed with a disposition appropriate to
its finding and the thoughts expressed here."
15

On remand, the district judge found that the testimony of Anna Mike was not
credible and the testimony of the other witnesses was credible. On the basis of
his own credibility determinations, the judge concluded that no sexual
relationship existed between Laughlin and Francis at the time of the sexual
assault. Finding no factual predicate for allowing cross-examination regarding
the relationship between Francis and Laughlin, the judge let stand the
conviction for aggravated sexual assault.

II
16

Platero urges two principal grounds for reversal of his convictions on Counts I,
II and III for sexual assault, arguing that (1) he was denied his right to trial by
jury by the refusal to submit to the jury the question whether an extramarital
relationship existed between Laughlin and Francis at the time of the offenses
and by the determination of that issue by the trial judge alone; and (2) he
consequently was denied his right under the Confrontation Clause of the Sixth
Amendment to confront and cross-examine Francis on that issue. We now turn
to these questions.

17

In contending he was denied his right to trial by jury and confrontation, Platero
more specifically contends that he was deprived of such constitutional rights
because the district judge himself made the credibility determinations and
concluded there was no "extramarital affair" between Francis and Laughlin.
Appellant's Brief in Chief at 19. Platero says that on remand the government
argued that this court had directed the trial judge to make a factual finding on
the existence of such a relationship. Id. at 21. The government argues to us that
on remand the trial judge did "exactly what this court required of it," and
followed the mandate. Brief of Appellee at 17 (emphasis in original). The
contentions made thus bring into play the doctrine of the law of the case and
what was decided and required by our Platero I decision and mandate.

18

Our order and judgment in Platero I stated:

19

In this case, the foundation upon which the Olden paradigm is built, while
evident in the testimony, has not been resolved on the record. The application
of the Olden principle is dependant [sic] upon the existence of a relationship
between Francis and Laughlin. There was testimony concerning the fact of the
relationship, but it was rebutted. Unfortunately, while the district court
appeared to have disbelieved Laughlin's former girlfriend, the court did not
resolve the discrepancy in the testimony.

20

At this juncture, the proper outcome hangs in the balance. If there had been an
existing relationship between Francis and Laughlin at the time of the alleged
crime, defendant should have been allowed to cross-examine Francis, as
required by Olden. Obviously, if there was no relationship, the entire logic
behind the defendant's quest evaporates.

21

....

22

AFFIRMED IN PART and REMANDED IN PART for a determination of the

factual issue addressed in this order and judgment. Following that
determination, the district court shall proceed with a disposition appropriate to
its finding and the thoughts expressed here.

23

Platero I, slip op. at 3-4, 6.

24

We are convinced that our mandate required that the district court determine
whether there was in fact a relationship at the time of the assault, not merely
whether there was sufficient evidence for a reasonable jury to find that such a
relationship existed. Our belief is supported by the statement: "[f]ollowing that
determination, the district court shall proceed with a disposition appropriate to
its finding...." Slip op. at 6 (emphasis added). On the basis of these clear
statements in Platero I, we must agree with the government that under our prior
decision and mandate, the district judge did comply with the procedure we
directed. Our first question then is whether our prior decision must now be
followed in this appeal under the doctrine of the law of the case.

25

In Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d
318 (1983), the Supreme Court stated:

Unlike the more precise requirements of res judicata, law of the case is an
26

amorphous concept. As most commonly defined, the doctrine posits that when a
court decides upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case. See 1B J. Moore & T. Currier, Moore's
Federal Practice p 0.404 (1982) (hereinafter Moore). Law of the case directs a
court's discretion, it does not limit the tribunal's power....
27

See also Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817,
108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988) ("the law-of-the-case doctrine
'merely expresses the practice of courts generally to refuse to reopen what has
been decided, not a limit to their power.' Messinger v. Anderson, 225 U.S. 436,
444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912) (Holmes, J.)...."). In Pittsburg &
Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir.1995), we said
that:

28
unlike
the doctrines of res judicata or collateral estoppel, 'the law of the case
doctrine has long been considered only a rule of practice in the courts and not a limit
on their power.' [United States v. Monsisvais, 946 F.2d 114, 116 (10th Cir.1991) ].
Nevertheless, the circumstances justifying a departure from the law of the case are
narrow. The most widely quoted statement is by former Tenth Circuit Chief Judge
Orie Phillips, sitting in another circuit, that the law of the case must be followed
'unless the evidence on a subsequent trial was substantially different, controlling
authority has since made a contrary decision of the law applicable to such issues, or
the decision was clearly erroneous and would work a manifest injustice.' Id. at 117
(quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967));....
29

52 F.3d at 1536 n. 4 (emphasis added). Thus, as noted in Pittsburg & Midway

Coal Mining Co., one recognized ground for relaxing the rule of the law of the
case is an intervening change in the law. See also Davis v. United States, 417
U.S. 333, 342, 94 S.Ct. 2298, 2302, 41 L.Ed.2d 109 (1974) (court of appeals
erred in holding that law of the case, as determined in earlier appeal from
conviction, precluded petitioner from securing relief under 28 U.S.C. Sec. 2255
on basis of intervening change in law); McGhee v. Draper, 639 F.2d 639, 646
(10th Cir.1981) (applying new rule where intervening authority has removed an
earlier determination as law of the case); Bromley v. Crisp, 561 F.2d 1351,
1363 (10th Cir.1977) (applying law of the case where "[n]o supervening
events, such as a change of law, have been demonstrated."), cert. denied, 435
U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978).

30

Thus Supreme Court and other precedents, including those of our own court,
instruct us that an intervening change in the law may serve as a cogent reason
for relaxing the doctrine of the law of the case, as may a conviction that
relaxing the rule is required to avoid working a manifest injustice.

31

To consider the law of the case doctrine's proper application here, we must
focus on the merits of the constitutional claims before us. On the jury trial
claim, the parties differ sharply in their arguments on the submission to the jury
of the question of the existence vel non of an extramarital relationship between
Francis and Laughlin. Platero argues that it was constitutional error not to allow
consideration by the jury of any evidence of such a relationship between
Francis and Laughlin at the time of the alleged assault, and not to permit crossexamination of Francis on this subject. Appellant's Brief in Chief at 19-20.

32

The government asserts it was not a constitutional violation for the judge to
decide on remand that there was no sexual relationship. Brief of Appellee at 1718. The government specifically relies on Fed.R.Evid. 412(b)(1) as it existed
before December 1, 1994, 2 and on Fed.R.Evid. 104(a), for its contention that it
was for the judge to make the finding on the relationship as a preliminary
question concerning the admissibility of evidence. Brief of Appellee at 20-21.
Platero, however, points to significant new wording of Rule 412(b), effective
December 1, 1994,3 Appellant's Reply Brief at 6, in arguing that Olden applies
here.

33

The significance of the time of the amendment here is that former Fed.R.Evid.
412 was in effect at the time of the offense (September 2, 1992), Platero's trial
below (July 1, 1993), and the decision of Platero I on appeal (November 16,
1994). But the important revision of Rule 412 became effective December 1,
1994. The trial judge's order finding that there was no existing relationship
between Francis and Laughlin at the time of the offense, and leaving the guilty
verdicts standing, was entered January 13, 1995, over a month after new Rule
412 became effective. The order of the Supreme Court of April 29, 1994,
submitting the amendments to Federal Rule of Evidence 412 provided:

34

2. That the foregoing amendment to the Federal Rules of Evidence shall take
effect on December 1, 1994, and shall govern in all proceedings thereafter
commenced and, insofar as just and practicable, all proceedings then pending.

35

154 F.R.D. 512 (April 29, 1994) (emphasis added).

36

Since the protection of constitutional rights is involved, it is logical that

amended Fed.R.Evid. 412 should be applied in determining the issues of this
appeal. This application is strongly favored by the Supreme Court's order to
follow the new rule "insofar as just and practicable" in all proceedings pending
on December 1, 1994, as Platero's case was.

37

The most significant change in Rule 412 is discussed in the notes of the
advisory committee on the rules. The committee noted:One substantive change
made in subdivision (c) is the elimination of the following sentence:
"Notwithstanding subdivision (b) of rule 104, if the relevancy of the evidence
which the accused seeks to offer in the trial depends upon the fulfillment of a
condition of fact, the court, at the hearing in chambers or at a subsequent
hearing in chambers scheduled for such purpose, shall accept evidence on the
issue of whether such condition of fact is fulfilled and shall determine such
issue." On its face, this language would appear to authorize a trial judge to
exclude evidence of past sexual conduct between an alleged victim and an
accused or a defendant in a civil case based upon the judge's belief that such
past acts did not occur. Such an authorization raises questions of invasion of the
right to a jury trial under the Sixth and Seventh Amendments. See 1 S.
Saltzburg & M. Martin, Federal Rules of Evidence Manual, 396-97 (5th
ed.1990).

38

Fed.R.Evid. 412 advisory committee's note (emphasis added). Saltzburg and

Martin, cited by the advisory committee, recognized the serious constitutional
problem created by the old rule:

39

Consider, for example, the situation in which the defendant claims that he had
prior consensual sexual activities with the victim on 7, 17, 70 or 80 consecutive
days prior to the day on which the sexual encounter giving rise to the
prosecution took place. According to the Rule, if the Trial Judge disbelieves the
defendant and concludes that no such activity took place, the Trial Judge should
rule that the evidence of the prior sexual activities is not to be admitted. To us,
this presents a clear violation of the right to jury trial.

40

This is quite a bit different from having Judges rule on most competency
questions (i.e., questions that arise under Rules that permit or require exclusion
of evidence that is relevant).... In deciding a competency question, the Judge is
not usurping the function of the jury. The Judge is not addressing the merits of
the case and deciding whether one side or the other is truthful. Rather, the
Judge is assuring that the evidence meets the usual evidentiary standards. But
when the Judge decides whether or not a defense is true or false and decides
that on the basis of the credibility of the witnesses, the Judge is doing what the
jury is supposed to do in a serious criminal case covered by the Sixth
Amendment. Similarly, when the residual provision [old rule 412(b)(1) ] is
invoked, the Rule suggests that the Trial Judge must determine not only
whether the defendant's evidence if true, must be admitted under the
Constitution, but also whether the evidence is true. Judges who decide that they

do not believe the evidence and exclude it threaten to take over a function that
has historically been reserved to the jury.
41

1 Stephen A. Saltzburg & Michael M. Martin, Federal Rules of Evidence

Manual: A Complete Guide to the Federal Rules of Evidence 396 (5th ed.1990)
(emphasis added).

42

While the example cited by the advisory committee notes and Saltzburg and
Martin addressed only the situation where an accused seeks to offer evidence of
past sexual conduct between himself and the alleged victim, the same
constitutional concerns are also present in the case before us. The constitutional
problem is the usurpation of the jury's function by the trial judge's
determination himself of the nonexistence of the relationship and his exclusion
of evidence offered in support of the defendant's theory.

43

Here, the district judge's decision on remand was based on his determination of
the witnesses' credibility, and had the effect of barring Platero from presenting
evidence which if believed by the jury could have damaged Francis's credibility
as a witness and possibly have caused the jury to disbelieve Francis's testimony
entirely. The judge's decision under the old version of Rule 412(c)(2) therefore
impinged on Platero's right to trial by jury. Our extension of the advisory
committee reasoning to questions of conditional relevance other than those
related to prior consensual sex between an accused and the alleged victim takes
into account the rationale of Olden, which involved "an extramarital
relationship" between the defendant's accuser and a third person, like that
alleged in this case.4 Our application of the advisory committee's reasoning
here finds support in Saltzburg and Martin:

44

If a rule were to say that a defendant may not offer evidence in defense unless
the Judge believes it, that rule would violate the right to jury trial. This is what
Rule 412 would tend to do if it is read to allow the Judge to bar reasonable
defense evidence that the Judge personally concludes is not credible.... A Judge
may not bar relevant evidence that itself establishes a defense recognized in
law. See, e.g., United States v. Garvin, 565 F.2d 519 (8th Cir.1977); United
States v. Riley, 550 F.2d 233 (5th Cir.1977). See also United States v.
Thompson, 615 F.2d 329 (5th Cir.1980).

45

Thus there was an important change in the Federal Rules of Evidence by the
December 1, 1994, revision of Rule 412(b) and the omission of the language
which required the court to accept the evidence on sexual conduct and to
determine whether the condition of fact relating thereto was fulfilled. The

advisory committee obviously was aware of the constitutional implications of

allowing the court to make the determination of the conditional fact, and
therefore removed the requirement of former Rule 412(c)(2) that "the court"
accept such evidence on sexual conduct and "determine such issue." This is a
significant intervening change in the law that impacts this appeal and supports
relaxation of the law of the case from Platero I and its mandate that the trial
judge decide the factual issue whether a relationship existed between Francis
and Laughlin. This relaxation of the law of the case also avoids a manifest
injustice of infringement of Sixth Amendment rights.
46

Therefore this panel may turn to the merits of the constitutional claims of
Platero that the determination whether an extramarital relationship existed
between Francis and Laughlin by the trial judge without submission of the
issue to the jury, and without Platero being able to confront and cross-examine
his accuser, violated Platero's Sixth Amendment rights.

III
47

* In connection with his trial by jury issue, Platero relies, inter alia, on
Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771
(1988). There the admissibility of similar acts evidence under Fed.R.Evid.
404(b) arose in a prosecution for selling stolen goods in interstate commerce.
The trial judge admitted testimony about the defendant's having offered to sell,
for unusually low prices, large numbers of items, some of which were proven to
have come from a stolen shipment of goods. The trial judge instructed the jury
that the evidence about the earlier acts was to be used only to establish the
defendant's knowledge of the stolen character of the goods, and not to prove his
character. Id. at 684, 108 S.Ct. at 1498. The defendant argued that the
submission of the issue to the jury was error; he said that a preliminary finding
that he had committed the earlier similar acts should have been made by the
judge under Rule 104(a). Id. at 686-87, 108 S.Ct. at 1500. The Court
unanimously rejected this argument:

48 104(a) [of the Federal Rules of Evidence] provides that "[p]reliminary

Rule
questions concerning the qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined by the court, subject
to the provisions of subdivision (b)." ...
....
49
50
Evidence
is admissible under Rule 404(b) only if it is relevant. "Relevancy is not an
inherent characteristic of any item of evidence but exists only as a relation between
an item of evidence and a matter properly provable in the case." Advisory

Committee's Notes on Fed.Rule Evid. 401, 28 U.S.C.App., p. 688. In the Rule

404(b) context, similar act evidence is relevant only if the jury can reasonably
conclude that the act occurred and that the defendant was the actor. See United
States v. Beechum, 582 F.2d 898, 912-913 (CA5 1978) (en banc)....
51

Such questions of relevance conditioned on a fact are dealt with under Federal
Rule of Evidence 104(b). Beechum, supra, at 912-913; see also E.
Imwinkelried, Uncharged Misconduct Evidence Sec. 2.06 (1984). Rule 104(b)
provides:

52
"When
the relevancy of evidence depends upon the fulfillment of a condition of fact,
the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition."
53

Huddleston, 485 U.S. at 687, 689-90, 108 S.Ct. at 1500, 1501 (emphasis
added). Huddleston demonstrates that where there is such a question of
relevancy depending on a condition of fact, like the relationship issue here, that
question goes to the jury for a determination, not to the judge.

54

This is the application our court has made of Huddleston. In United States v.
Herndon, 982 F.2d 1411 (10th Cir.1992), the defendant argued that similar acts
evidence was irrelevant because the government had failed to prove that he had
committed the earlier similar offense on which proof had been admitted. We
noted that Huddleston had "held that a trial court need not make a preliminary
finding that the government proved the existence of the similar act " by the
defendant before submitting the similar acts evidence to the jury. Id. at 1415
(emphasis added). Obviously, as Huddleston and Beechum make clear, the trial
judge's function is to determine only the presence of "sufficient evidence to
support a finding by the jury that the defendant committed the similar act," id.
(quoting Rule 404(b))--a "relevancy conditioned on fact" question under Rule
104(b) as opposed to a preliminary question of admissibility of the type
enumerated in Rule 104(a) (e.g., qualification of a witness, existence of a
privilege).5 When the trial judge here made the conclusive finding on relevancy
conditioned on fact (the relationship issue) adversely to Platero, this ran counter
to the procedural teaching of Huddleston and Herndon.

55

We noted above the Supreme Court's favorable citation of United States v.

Beechum in Huddleston. As part of Beechum 's analysis it is instructive to note
this observation in the Fifth Circuit's en banc opinion:

56

The standard for the admissibility of extrinsic offense evidence is that of rule

104(b): "the preliminary fact can be decided by the judge against the proponent
only where the jury could not reasonably find the preliminary fact to exist." 21
Wright & Graham, Federal Practice and Procedure: Evidence Sec. 5054, at 269
(1977).

57
58

Beechum, 582 F.2d at 913 (emphasis added).

If instead the trial judge proceeds to decide the preliminary relevancyconditioned-on-fact issue against the proponent where the jury could
reasonably find the fact to exist, the judge has violated the proponent's right to
a jury trial, contrary to clear precedent from the Supreme Court and our court
applying the rules of evidence.

B
59

In support of his Confrontation Clause claim, Platero relies on Olden v.

Kentucky, supra. There petitioner Olden challenged his conviction for forcible
sodomy. At the time of the alleged offense, the victim Starla Matthews was
"apparently" involved in an extramarital relationship with Bill Russell, Olden's
half brother. At the time of trial, Matthews and Russell were living together. On
the night of the incident in Olden, Matthews left a bar with Olden and another
man, Harris, in Harris's car. Matthews claimed that she was driven to another
location, where Olden threatened her and then raped her. After the alleged
assaults, Matthews was dropped off near Russell's house, at her request.

60

Olden asserted a consent defense. His theory was that Matthews concocted the
rape story to protect her relationship with Russell, who would have grown
suspicious on seeing her disembark from Harris's car. In order to demonstrate
Matthews's motive to lie, it was crucial, Olden contended, that he be allowed to
introduce evidence of Matthews's and Russell's current cohabitation. 488 U.S.
at 230, 109 S.Ct. at 482. Evidence of their living arrangements was excluded by
the granting of the prosecutor's motion in limine. The Supreme Court held that
this ruling violated Olden's Sixth Amendment right to confront his accuser:

61

[P]etitioner has consistently asserted that he and Matthews engaged in

consensual sexual acts and that Matthews--out of fear of jeopardizing her
relationship with Russell--lied when she told Russell she had been raped and
has continued to lie since. It is plain to us that "[a] reasonable jury might have
received a significantly different impression of [the witness's] credibility had
[defense counsel] been permitted to pursue his proposed line of crossexamination." Delaware v. Van Arsdall....

62

Id. at 232, 109 S.Ct. at 483 (emphasis added).

63

Platero I noted that "Olden bears some remarkably similar circumstances" to

Platero's case. Slip op. at 3. Platero I reasoned, however, that the critical fact
was unresolved--the predicate relationship of the victim with another man. In
Platero I, we sent the case back for a determination of this relevancyconditioned-on-fact issue by the judge, which was in accord with provisions of
then existing Fed.R.Evid. 412(c)(2) (the court "shall determine such issue.").
However, now, with the change in the law by the omission of the Rule 412(c)
(2) provision that the court determine whether the condition precedent to
relevancy has been fulfilled, issues of relevancy-conditioned-on-fact should be
considered under Fed.R.Evid. 104(b). Under Rule 104(b), the court determines
only whether the evidence is sufficient to support a jury finding that the
condition has been met. The clear teaching of Huddleston, Herndon, and similar
cases, is that if the evidence would support such a finding, the jury must be
permitted to determine the issue.

64

Our record shows that at the Rule 412 hearing, both Francis and Laughlin
admitted that, at the time of the hearing, they were involved in a romantic
relationship with each other. This was the equivalent of the "current
cohabitation" showing involved in Olden, 488 U.S. at 230, 109 S.Ct. at 482.
Laughlin admitted that in January or February 1993 Francis moved in with him.
He also testified that prior to the incident he and Francis went out "maybe once
or twice a month" and would sometimes stay out until 11:00 or 12:00. Jimmy
Francis, then Susie Francis's husband, testified that when his wife and Laughlin
would go out in the evenings, she would usually get home at one o'clock.

65

Anna Mike testified that she was Laughlin's girlfriend for five years; that their
relationship ended in February 1992; that Francis was having an affair with
Laughlin at that time; and that when she confronted Laughlin about a "hickey"
on his neck, he told her that Susie Francis had given it to him.

66

In addition to the testimony at the hearing, at trial Diedra Gonzales, a

McKinley County sheriff's officer, testified as a government witness. Gonzales
read from her police report about statements made to her by Francis the
morning after the alleged assault. Three times Francis referred to Laughlin as
her "boyfriend." Also at trial, Dr. Elizabeth Saunders, the physician who
examined Francis at the hospital following the incident, testified that she had
asked Francis if she had anything to drink and that Francis had said that she had
had three beers with dinner with her boyfriend the night of the alleged assault.

67

We examine this evidence without weighing its credibility, see Huddleston, 485

67

We examine this evidence without weighing its credibility, see Huddleston, 485
U.S. at 690, 108 S.Ct. at 1501, and conclude that Platero clearly presented
sufficient evidence such that "the jury could reasonably find the conditional
fact ... by a preponderance of the evidence." Id. Therefore, this evidence should
have been submitted to the jury, and Platero should have been permitted to
cross-examine Francis about her relationship with Laughlin at the time of trial
and earlier when the assault allegedly occurred, under the relevance rationale of
Olden.

68

At the new trial, which we direct on remand, cross-examination of Francis must

be permitted on her relationship with Laughlin, if a showing similar to that
outlined above is made that Francis had a romantic or sexual relationship with
Laughlin. And if a showing is made so that the jury could reasonably find such
a relationship existed between Francis and Laughlin at the time of the alleged
assault, the jury should be instructed that it should first determine whether
there was a romantic or sexual relationship between Francis and Laughlin at the
time of the alleged assault; that if it finds no such relationship, it should
disregard the cross-examination of Francis on that subject; otherwise the jury
may consider that cross-examination and other evidence of the relationship
between Laughlin and Francis in determining Platero's innocence or guilt.

IV
69

In sum, it appears clear that there were constitutional infringements of Platero's

right to trial by jury and his right of confrontation provided by the Sixth
Amendment. These basic constitutional violations cannot be held harmless
error on this record. Accordingly, the judgment is REVERSED and the case is
REMANDED for further proceedings in accord with this opinion.

Honorable Wesley E. Brown, Senior United States District Judge for the
District of Kansas, sitting by designation

We affirmed Platero's other convictions on the charges made in Counts IV, V

and VI. Those convictions are not at issue in this appeal

Fed.R.Evid. 412(b), before December 1, 1994, provided in part:

(b) Notwithstanding any other provision of law, in a criminal case in which a
person is accused of an offense under chapter 109A of title 18, United States
Code, evidence of a victim's past sexual behavior other than reputation or
opinion evidence is also not admissible, unless such evidence other than
reputation or opinion evidence is--

(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is

constitutionally required to be admitted;....
3

Fed.R.Evid. 412, as effective December 1, 1994, provides in part:

Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual
Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible--The following evidence is not admissible
in any civil or criminal proceeding involving alleged sexual misconduct except
as provided in subdivisions (b) and (c):
....
(b) Exceptions.-(1) In a criminal case, the following evidence is admissible, if otherwise
admissible under these rules:
....
(C) evidence the exclusion of which would violate the constitutional rights of
the defendant.

We construe the rationale of Olden to apply to romantic as well as to

extramarital relationships

The government's reliance on Bourjaily v. United States, 483 U.S. 171, 107
S.Ct. 2775, 97 L.Ed.2d 144 (1987), and other cases dealing with findings on
preliminary questions of admissibility under Rule 104(a) (e.g., qualification of a
witness, existence of a privilege, etc.) is misplaced. As explained below, the
question for the trial judge in Platero's case was instead a preliminary
relevancy-conditioned-on-fact issue under Rule 104(b)